Congress Wants To Push Dangerous Cybersecurity Bill After The Election, Says US Economy Depends On It

from the bad-ideas dept

Reports are coming out that Congress is looking to push forward with bad cybersecurity legislation after the election, but before the new Congress takes over in January. We've discussed the bill in question, CISA, before. The main idea behind it is to immunize companies from liability if they share certain information with the government. Supporters of the bill note that the information sharing is entirely voluntary, but by taking away the liability it also makes it a lot more likely that companies will choose to give information to the government, and it's not yet clear why the government really needs that information. But the FUD levels are high, with Senator Saxby Chambliss actually suggesting the entire economy is at stake here:

"If we wait another year, we are really risking the economy of the United States."

Oh, come on. People have been saying this for years -- along with the whole "cyber pearl harbor" claims -- but have failed to present any explanation or details of how (1) there's a real risk to the economy or (2) how current laws block necessary solutions. On top of that, no one seems willing to explain how further information sharing will actually help stop online attacks. Remember, this is the same federal government that didn't even notice that the White House's own network had been breached until some other country told us about it. And yet, we now believe that if only US companies were feeding more information to the NSA that they'd magically be able to stop attacks (and save the economy?). That seems unlikely.

It also sounds like there may be some sort of potential trade-off, in which Congress will try to lump this bill with the USA Freedom Act, as the White House is said to be focused on surveillance reform over the cybersecurity bill. But, the reality is that the two are in many ways attached. And there are increasing worries that the final result on the USA Freedom Act will, in some ways, actually (yet again) enhance the NSA, rather than hold it back. Combine that with a cybersecurity bill that will give the NSA even more ways to get our data, and the end result could be the surveillance state increasing, rather than shrinking, with no actual benefit to the American public. There would be fewer privacy protections and just some arm waving about saving the US economy.

Filed Under: cisa, cispa, cybersecurity, economy, fud, nsa, saxby chambliss, sharing, surveillance, usa freedom act

Tech Execs Express Extreme Concern That NSA Surveillance Could Lead To 'Breaking' The Internet

from the moral,-economic-and-patriotic dept

As mentioned, on Wednesday I attended a tech exec panel held at Palo Alto High School (in the high school gym, which was a weird sort of setting for such a high powered gathering of folks -- complete with gym echoes, and school bells buzzing, at one point leading a bunch of students to stream out to lunch just as Google's Eric Schmidt started talking). You can see the video of the event here where the sound is actually much, much clearer than in the gym itself, where the buzzing old lights made it nearly impossible to hear half of the panelists). Nothing necessarily earth-shattering was said by anyone, but it did involve a series of high powered tech execs absolutely slamming the NSA and the intelligence community, and warning of the vast repercussions from that activity, up to and including potentially splintering or "breaking" the internet by causing people to so distrust the existing internet, that they set up separate networks on their own.

The execs repeated the same basic points over and over again. They had been absolutely willing to work with law enforcement when and where appropriate based on actual court orders and review -- but that the government itself completely poisoned the well with its activities, including hacking into the transmission lines between overseas datacenters. Thus, as Eric Schmidt noted, if the NSA and other law enforcement folks are "upset" about Google and others suddenly ramping up their use of encryption and being less willing to cooperate with the government, they only have themselves to blame for completely obliterating any sense of trust.

Microsoft's Brad Smith, towards the end, made quite an impassioned plea -- it sounded more like a politician's stump speech -- about the need for rebuilding trust in the internet. It's at about an hour and 3 minutes into the video. He points out that while people had expected Congress to pass the USA Freedom Act, the rise of ISIS and other claimed threats has some people scared, but, he notes:

We need to look the world's dangers in the face. And we need to resolve that we will not allow the dangers of the world to freeze this country in its tracks. We need to recognize that antiquated laws will not keep the public safe. We need to recognize that laws that the rest of the world does not respect will ultimately undermine the fundamental ability of our own legal processes, law enforcement agencies and even the intelligence community itself. At the end of the day, we need to recognize... the one asset that the US has which is even stronger than our military might is our moral authority. And this decline in trust, has not only effected people's trust in American technology products. It has effected people's willingness to trust the leadership of the United States. If we are going to win the war on terror. If we are going to keep the public safe. If we are going to improve American competitiveness, we need Congress to stay on the path it's set. We need Congress to finish in December the job the President put before Congress in January.

It was a good talk, and it basically was a chance for all these tech execs to express similar concerns and to do so loudly. It's perfectly reasonable to suggest that the tech industry was complacent on these issues in the past, that they were too trusting (often way too trusting) of the government, that they should have started from a position of distrust and should have encrypted everything possible from the get go. Frankly, those are very legitimate criticisms. But, it's pretty clear that these tech companies are now pissed off at the government and the fact that it undermined everything, including their own businesses around the globe -- and they're determined to win back the trust of the public, whether or not the government is willing to cooperate. I find that encouraging, though I'd still like to see pretty much all of the companies do even more on the encryption front.

As I said, there wasn't anything earth shattering, but it's clear that these companies have all seen the impact from the government's overbroad surveillance efforts, and they're not just concerned about it from their direct bottom line, but what it means for the overall internet. Multiple execs talked about not just moral authority, as Smith mentioned, but the moral imperative to use the internet to create greater connectivity and raise the ability of people around the globe -- and how much more difficult the NSA had made things.

I know that some cynical folks will claim this is all for show. But there is a real concern that comes across here about just how devastating the NSA's actions have been (and continue to be). Schmidt was absolutely right that if law enforcement and the intelligence community is upset about it, they only have themselves to blame.

Filed Under: brad smith, economy, eric schmidt, nsa, ron wyden, surveillance, trust
Companies: google, microsoft

US Free Trade Agreements Are Bad Not Just For The Economy, But For The Environment, Too

from the what-was-the-benefit-again? dept

A couple of months ago, we reported on some interesting research into the reality of US trade agreements, in contrast to the rosy pictures always painted when they are being sold to the public by politicians. In particular, it turned out that far from boosting US exports and creating more jobs, both the North American Free Trade Agreement (NAFTA) and KORUS, the free trade agreement with South Korea, actually did the opposite -- increasing the US trade deficit with those countries, and destroying hundreds of thousands of American jobs.

But of course bare economic statistics don't capture the full effect of free trade agreements. For example, there is also the environmental impact to consider. An interesting press release from the Sierra Club reports on a meeting held to consider that aspect. It turns out that things look as bad there as they do on the economic front:

"Nearly 20 years into NAFTA and the evidence is in," said Ilana Solomon, director of the Sierra Club’s Responsible Trade Program. "NAFTA led to an expansion of deforestation and unsustainable water use in order to support export-oriented agriculture. It gave massive rights to corporations to challenge environmental and climate safeguards in private trade tribunals. It expanded exports in dirty fossil fuels in a time when we should be moving beyond these outdated fuels and investing in clean energy. Governments must take a page out of the history books and stop negotiating trade pacts that gut protections for our air, water, land, workers, and communities."

That last comment is a clear reference to TPP, but applies equally to TAFTA/TTIP. Both of these are likely to include investor-state dispute settlement (ISDS) measures that allow companies to sue entire nations for alleged "expropriation" of future profits in the "private tribunals" referred to above. One of the ways that governments can be accused of doing that is by strengthening safeguards for the environment, since that often has the knock-on effect of increasing costs for businesses, and thus reducing their future profits. Companies then try to claim ISDS provisions in trade agreements give them the "right" to sue for compensation -- Techdirt recently wrote about a case involving the Canadian province of Quebec.

The problem with ISDS is not just the literally limitless awards that can be made against governments, which have to be paid out of public funds. The mere threat of such actions can have a chilling effect on the formulation of national policy. It's been happening in Canada for over a decade, thanks to the ISDS chapter in NAFTA, as a former government official in Ottawa explained:

"I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day."

What this means in practice is that ISDS clauses in major US trade agreements currently being negotiated are likely to have the same negative effects on the environment as NAFTA, but on a much greater scale. That's because they involve far larger trade blocs, and recourse to ISDS tribunals has increased greatly in recent years, adding to the credibility of threats to use them unless plans for more stringent environmental policies are dumped. So alongside the dubious economic claims being made for them, which are undermined by the failure of both NAFTA and KORUS to produce the predicted exports or jobs, we can now add the hidden environmental damage as yet another reason to call into question the alleged benefits of both TPP and TAFTA/TTIP.

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Filed Under: economics, economy, environment, korus, nafta, tafta, tpp, ttip

Greater Fair Use Helped The Singapore Economy

from the as-it-should dept

While traditional "copyright" industry maximalist players like to insist that any weakening of copyright would be disastrous for the economy, the evidence almost always shows the exact opposite. Exceptions to copyright, such as fair use, over and over seem to show that fair use has a positive economic impact. Thanks to a change in Singaporean copyright law that expanded fair use in 2005, researchers were given a chance to see if they could quantify just how much of an economic impact there was. The recently released research shows that increasing fair use likely helped grow the Singaporean economy. There was a definite correlation to start:

The counterfactual impact analysis of fair use amendments in Singapore undertaken here demonstrates that flexible fair use policy positively influences growth rates in private copying technology industries. In 2010, five years after the policy intervention, Singapore's fair use amendments are correlated with a 3.33% increase in value-added (as % of GDP) for private copying technology industries. Prior to the amendment of fair use policies, private copying technology industries experienced - 1.97% average annual growth. After the changes were introduced, the same industries enjoyed a 10.18% average annual growth rate. This resulted in a total increase of € 2.27 billion in value-added for private copying technology industries in that period. The results show that, prior to fair use amendments, the private copying industries in Singapore were in recession. After fair use amendments, this group experienced a rapid increase in growth rates and continued to exhibit strong growth over the five year period.

Yes, that part is just about correlation -- and, as we know, correlation does not necessarily show causation. However, with additional research, you can sometimes show the linkage, and thankfully, this report tries to do so -- by looking at a "control group" of companies in tech manufacturing and services, who weren't directly impacted by changes in fair use. In that case, there was basically no growth.

Finally, the report then also looked at the "copyright industry" and whether it lost significant revenue because of this change (and specifically if the increases on the "private copying technology industries" are drowned out by decreases from copyright companies). But, no such luck:

There was no significant change in growth rates for the copyright group before and after fair use amendments when measured in terms of real economic growth (value added as % of GDP).

There was some slowing of the growth rate, but not as a % of GDP (so, in real terms). The conclusion is pretty clear:

We suggest fair use amendments in Singapore did not negatively affect the copyright industries significantly because private copying technologies, which experienced high growth as an industry group after the fair use amendments, increase the value of copyrighted works to consumers. While one might expect a rise in private copying technology industries to result in a significant recession for the copyright industries, this has not been the case in Singapore since the introduction of more flexible fair use policy in 2005.

The counterfactual impact analysis results for the Singapore case study show that fair use policy is correlated with higher growth rates in private copying technology industries, while having a very limited impact on copyright industries.

This seems important, especially considering that very few countries have expansive fair use provisions in copyright law -- and when they try to implement them, they're often shot down as legacy players insist that fair use would "put a chokehold" on their industries. The evidence seems to really suggest quite the opposite. But, we're not dealing with people used to caring about evidence, when pushing anti-fair use agendas.

Filed Under: copyright, economy, fair use, singapore

MPAA & RIAA: If People Can Sell Foreign Purchased Content Without Paying Us Again, US Economy May Collapse

from the a-bit-of-an-exaggeration dept

We've written a few times about the upcoming Kirtsaeng case before the Supreme Court concerning first sale rights. If you don't recall, the 2nd Circuit appears to have wiped out the first sale doctrine for content purchased outside the country that you want to resell within the US. As we noted, there are significant worries about how such a ruling could really harm innovation. At issue was a guy who bought textbooks abroad and resold them in the US (for less than the cover price that the publishers wanted students to buy). The courts basically found that because the textbooks were made outside the US, they weren't "lawfully made under this title," which is some clumsy phrasing that's at issue here.

Of course, thanks to our copyright maximalism, under Kirtsaeng, if a product is made outside the US and then imported, US copyright law appears to apply to almost everything that's copyrightable... except that first sale rights go away. If that seems dangerous, you get a sense of how important the Supreme Court's ruling in Kirtsaeng can be, hopefully by bringing back some sanity, and showing that if you legally purchase some digital content you have the right to resell it.

It appears that the RIAA and MPAA are pretty scared about this possibility. They've filed quite the amicus brief in the case claiming that buying goods overseas and selling them in the US is the equivalent of piracy. No joke:

Copyright protection is essential to the health of the motion picture and music industries and the U.S. economy as a whole. Like the sale of “pirated” copies, unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act.

Oh, and it gets worse. You see, if that darned first sale is allowed on foreign goods, why (*gasp*) the MPAA and RIAA might actually have to deal with people buying goods in one market and selling them elsewhere. Horrors!

Extending the first sale doctrine to copies made abroad for distribution in a foreign market could impede authors’ ability to control entry into distinct markets, limit their flexibility to adapt to market conditions, or undermine territorial licensing agreements. If accepted, Kirtsaeng’s view of the first sale doctrine could thus prevent U.S. copyright holders from obtaining the economic reward Congress intended to provide under U.S. law to motivate investment in creative activity.

Now that's an interesting interpretation of copyright law. The RIAA and MPAA are arguing that if they can't block people from importing the versions they sell overseas, it will somehow motivate less investment in creative activity. Really?

Here's the real problem: the RIAA and MPAA want to have their cake and eat it too. If products bought abroad and then imported into the US don't get first sale rights, then it seems only reasonable that they shouldn't get US copyright protection either. Part of the deal with copyright protection in the US is that as part of it, you accept that buyers have first sale rights that allow them to resell what they legally purchased. What the RIAA and MPAA are attempting to do here is to take away the public's right to resell what they've legally purchased, because it might interfere with one aspect of their preferred business model.

Of course, what this really comes down to is that the RIAA and MPAA absolutely hate the idea that they might have to compete in a global market. They more or less admit this in the brief, suggesting that prices are cheaper elsewhere in the world because copyright law sucks in other places... and allowing cheap goods into the US means that they don't get the "separate benefit" of expansive US copyright law:

When copyright owners distribute tangible copies of creative works in a foreign market, they recoup the economic benefit made possible by the copyright law of that country, which may be substantially less generous or well enforced than U.S. copyright law. They do not realize the separate benefit Congress intended them to derive from their U.S. copyright. If those copies are imported into the United States without permission, the copyright owner might never obtain that full benefit.

Boohoo. You sell into one market, people buy, they sell into a different market. Every other business in the world has to deal with exactly that. Why should the RIAA/MPAA get special treatment?

Oh, and of course, they rush to play up how much "harm" this would do if they can't overprice content in the US (what this is really about) by trotting out the same debunked stats about just how important they are -- even to the point of suggesting that allowing people to resell goods they legally bought elsewhere would have deleterious consequences for the entire US economy.

Those harms, in turn, could have deleterious consequences for the U.S. economy as a whole. As of 2010, the motion picture and television industry supported 2.1 million jobs and nearly $143 billion in total wages in the United States.... In addition to the major motion picture studios, the industry supports a nationwide network of nearly 95,000 businesses throughout the 50 States. Id. The music industry employed over 25,000 paid employees as of 2004.... The industry supports many smaller businesses such as retail stores, distribution companies, recording studios, and music professionals. The retail trade alone generates over $7 billion from the sale of sound recordings... Maintaining robust copyright protection is thus crucial to preserving not only the health of these creative fields themselves, but also their substantial contributions to the national economy.

That the actual evidence suggests something quite different is, of course, not mentioned. That the overall music and movie industries have been growing quite nicely, even as copyright is more and more ignored, is not mentioned. That more content is being produced and more money is being made... is not mentioned. Inconvenient facts are not allowed.

The filing at one point gets so snarky that it claims that those arguing the other side are using the word "arbitrage" as a euphemism (for what?!), rather than as an accurate description of what happens to normal economies that can't set up protectionist tariffs on importation of goods.

The whole thing shows the same myopic thinking of the RIAA and MPAA -- that anything that threatens their chosen obsolete business model simply must be illegal. Because having the courts and Congress prop up old business models must be better than actually innovating and (*gasp*) letting people resell what they legally bought.

Filed Under: copyright, economy, first sale, foreign works, kirtsaeng
Companies: mpaa, riaa

Industries Dependent On Copyright Exceptions Contribute $182 Billion To Australian Economy

from the not-too-shabby dept

Despite the absence of credible studies supporting the idea, part of the copyright maximalist dogma is that the wider the reach of copyright, and the stricter the application, the better. As a corollary, copyright exceptions are anathema, which is why the US and EU are still shamefully resisting an international treaty that would enable more books covered by copyright to be produced in versions suitable for the visually impaired, since it would create a minor exception to help make that happen.

Part of the difficulty in contesting this view is that there is also very little research showing that exceptions are important, especially for driving economic growth. That makes a new report called "Excepting the Future" (pdf), commissioned by the Australian Digital Alliance, and pointed out to us by @MsLods, a particularly important contribution to the debate.

It starts by explaining why traditional copyright, devised in an analogue world, is no longer working:

digital content cannot be handled without copying it. Thus in the digital world, the distinction between handling and copying a work has completely broken down. All handling of digital content, however helpful to society or rights holders, may prima facie be a breach of copyright, attracting liability to rights holders if they have not permitted it.

It goes on to draw a suggestive parallel:

This situation is dysfunctional. It is not unlike the state of air-space law at the point at which the development of aviation had rendered it obsolete. In the early twentieth century, following Roman Law, land owners held exclusive rights "up to Heaven and down to Hell" giving them impracticable veto powers over air routes.

It was only when legal certainty was established by crafting an exception that allowed aircraft to pass over private property that the aviation industry really developed; the report calls for similar liberating exceptions to be created in Australian copyright law, so as to bring it more in line with the US's looser and highly-successful fair-use framework.

Australia's current copyright system is ill-equipped to cope with key Internet activities like search and indexing, caching and hosting, since they all involve incidental copying. Theoretically, companies providing those services ought to seek licensing agreements with copyright holders to avoid infringement. The report calculates how much time and money would be required to do that in the case of search engines:

If the 170 search engines listed at www.philb.com/webse.htm transacted with all 3.8 million Australian domain name registrants [to obtain permission to allow their sites to be indexed], it would involve 645 million transactions. If each transaction took 9.5 hours [to allow for multiple communications and checks by the site regarding rights], then, at average weekly wages, the transaction costs would exceed $150 billion a year. And that is just for the Australian domain names.

As well as the huge costs that current Australian law would entail if applied to the letter, the report quantifies the contribution that industries making use of copyright exceptions contribute to the economy: 14% of Australia’s annual Gross Domestic Product, or $182 billion; they also employ 21% of its paid workforce, almost 2.4 million people. The report further estimates the contribution more flexible copyright exceptions, coupled with better safe harbors, would contribute to the economy: around $600 million annually.

Of course, these figures can, and probably will, be contested by those ideologically against copyright exceptions. But it's a start, and a welcome one in the context of the prevalent assumption that more copyright equates to more economic benefit.

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Filed Under: australia, copyright, economy, exceptions, fair dealing, fair use, public domain

The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas

from the let's-walk-through-the-reasons dept

There's been plenty of talk (and a ton of posts here on Techdirt) discussing both SOPA (originally E-PARASITE) and PROTECT IP (aka PIPA), but it seemed like it would be useful to create a single, "definitive" post to highlight why both of these bills are extremely problematic and won't do much (if anything) to deal with the issues they're supposed to deal with, but will have massive unintended consequences. I also think it's important to highlight how PIPA is almost as bad as SOPA. Tragically, because SOPA was so bad, some in the entertainment industry have seen it as an opportunity to present PIPA as a "compromise." It is not. Both bills have tremendous problems, and they start with the fact that neither bill will help deal with the actual issues being raised.

That main issue, we're told over and over again, is "piracy" and specifically "rogue" websites. And, let's be clear: infringement is a problem. But the question is what kind of problem is it? Much of the evidence suggests that it's not an enforcement problem and it's not a legal problem. Decades of evidence from around the globe all show the same thing: making copyright law or enforcement stricter does not work. It does not decrease infringement at all -- and, quite frequently, leads to more infringement. That's because the reason that there's infringement in the first place is that consumers are being under-served. Historically, infringement has never been about "free," but about indicating where the business models have not kept up with the technology.

Thus, the real issue is that this is a business model problem. As we've seen over and over and over again, those who embrace what the internet enables, have found themselves to be much better off than they were before. They're able to build up larger fanbases, and to rely on various new platforms and services to make more money.

And, as we've seen with near perfect consistency, the best way, by far, to decrease infringement is to offer awesome new services that are convenient and useful. This doesn't mean just offering any old service -- and it certainly doesn't mean trying to limit what users can do with those services. And, most importantly, it doesn't mean treating consumers like they were criminals and "pirates." It means constantly improving the consumer experience. When that consumer experience is great, then people switch in droves. You can, absolutely, compete with free, and many do so. If more were able to without restriction, infringement would decrease. If you look at the two largest contributors to holding back "piracy" lately, it's been Netflix and Spotify. Those two services alone have been orders of magnitude more successful in decreasing infringement than any new copyright law. Because they compete by being more convenient and a better experience than infringement.

Finally, even if you disagree with all of that, and believe that the problem is enforcement, SOPA and PIPA, won't be effective in dealing with that. The internet always has a way of routing around "damage" no matter how hard people try to stop it, and the approach put forth by these bills is a joke. It's hard to find anyone with technology skills who thinks that they will be effective. Every "blockade" has an easy path around it, and the supposed "anti-circumvention" rule in SOPA will never deal with the more obvious paths around things like DNS blocking (use a different DNS or a perfectly legal foreign VPN system). The private right of action efforts are also mistargeted. They're based on the premise that infringement is done for monetary reasons. It's amusing that just a few years ago, these same industries insisted that music and movie fans never wanted to pay anything any more, but now they're claiming that these same people are paying for cyberlockers all the time? That's simply not credible. And if there's so much money to be made, the studios and labels would be opening their own cyberlockers. Either way, we've watched this game of Whac-a-mole for over a decade. It doesn't work. Every site that is shut down leads to half a dozen new ones that spring up. This is not how you tackle a problem: by making the same mistake made over and over again in the past.

So... SOPA & PIPA don't attack the real problem, do nothing to build up the services that do solve the problem, and won't work from a technological standpoint. And that's just if we look at the what these bills are supposed to do.

The real fear is the massive collateral damage these bills will have to jobs, the economy and innovation.

• The broad definitions in the bill create tremendous uncertainty for nearly every site online. This sounds like hyperbole, but it is not. Defenders of the bill like to claim that it is "narrowly focused" on foreign rogue infringing sites. Nothing could be further from the truth. While PIPA targets only foreign sites, the mechanism by which it does so is to put tremendous compliance and liability on third party service providers in the US. SOPA goes even further in expanding the private right of action to domestic sites as well. We've already seen how such laws can be abused by looking at how frequently false takedown claims are made under the existing DMCA. Of course, under the DMCA, just the content is blocked. Under SOPA all money to a site can be cut off. Under PIPA sites will just end up in court. Or, with both laws, an Attorney General can take action leading US companies to have to effectively act as network nannies trying to keep infringement from being accessible. None of this is good for anyone building a startup company these days. The massive uncertainty around this, combined with the need for a huge legal department sitting in "the garage" as a startup begins, will certainly slow down the pace of innovation in the US, while likely driving it elsewhere.
  
  And the definitions are ridiculously broad. Under SOPA, you can be found "dedicated to the theft of US property" if the core functionality of your site "enables or facilitates" infringement. The core functionality of nearly every internet website that involves user generated content enables and facilitates infringement. The entire internet itself enables or facilitates infringement. Email enables or facilitates infringement. They have significant non-infringing uses as well, but the definition leaves that out entirely. Under SOPA, there's also a risk if you take "deliberate actions to avoid confirming a high probability" of infringement on a site. Of course, it's not at all clear how one takes deliberate actions to avoid taking action. The only way to read this clause from a tech company perspective is that it requires proactive monitoring, which is effectively impossible for a user generated content site. PROTECT IP's definitions are equally broad, again using the "enabling" or "facilitating" language.



• The risk of these broad definitions on perfectly legitimate companies is not theoretical: Defenders of both bills continue to insist that they're only meant to deal with the worst of the worst. If that were really true, the definitions would be a lot tighter and a lot more specific. Even if this is the intention of the authors of both bills, the simple fact is that the very broad definitions in the bill, mean that any entrepreneur today will need to take significant compliance costs just to avoid the possible appearance of fitting the criteria.
  
  Defenders also like to brush off the idea that a bill like this would target something like YouTube. But we know that's not accurate since Viacom is still engaged in a huge lawsuit against YouTube, in which Viacom's claims certainly appear to cover the definitions found in these bills. While it seems unlikely that anyone would try to shut down YouTube completely, given the public outcry it would create, the real fear is what happens to the next YouTube, or just the fear that a rights holder could strike into any company by threatening them under the private rights of action in each bill. It becomes a form of legalized extortion. Threaten to bring action under these bills, and watch tech companies crumble.
  
  And, already there are indications that companies are interested in bringing broad actions for infringement against organizations that most people would consider perfectly legal. Advertising giant GroupM recently asked its entertainment industry customers to compile a list of "sites dedicated to infringement," not unlike what's found under PROTECT IP. Universal Music, Warner Bros. and Paramount were three key providers to that list, which ended up covering a large number of perfectly legitimate sites including the famed Internet Archive (widely recognized as the library for the internet). It also included numerous innovative startups that are frequently used by content creators to get their works out, such as SoundCloud and Vimeo. Even more worrisome, it included a variety of publications and blogs, including Vibe Magazine, the quintessential hip hop and R&B magazine founded by Quincy Jones, as well as Complex, a popular lifestyle magazine recently recognized as one of the most valuable startups in New York.
  
  Even worse, it appears that Universal Music also included the personal website of one of its own top artists, 50Cent. The hiphop star has a personal website as well as a website owned by Universal Music. The personal website is much more popular... and it appeared on the infringement list. Suddenly, you can see how letting companies declare what sites are dedicated to infringement can lead to them looking to stifle speech and competition.
  
  Similarly, Monster Cable, who has stated its support for PROTECT IP, has put together its own list of "rogue sites" and it, rather stunningly, includes sites like eBay, Craigslist, Costco and Sears. It even includes consumer rights groups like Which? in the UK, and various popular shopping search engines like PriceGrabber.
  
  These companies clearly take an expansive view of what constitutes "dedicated to infringement," and have no problem suggesting they would like to stop these sites. Internet companies and site owners have every right to be extremely afraid of what laws like PIPA and SOPA would do when they give much more power to these private companies to take actions that could shut down these sites, tie them up in court or merely cut off their funding and advertising.
  
  
• That uncertainty has very real and quantifiable effects on jobs in this country. President Obama has noted that the internet adds approximately $2 trillion to the annual GDP (pdf). The amount of jobs created by the tech industry are massive, and represent a large percentage of all new job creation today. IDC has predicted 7.1 million new jobs and 100,000 new businesses created in the next four years from the tech sector. An astounding 3.1 million people are employed thanks to internet advertising -- jobs that simply did not exist a decade ago.
  
  And these jobs go way beyond just the jobs at tech companies themselves. The important thing in tech platforms is not in how many jobs are at those companies, but how many jobs they enable elsewhere. eBay has been said to have empowered 750,000 people to build their own small businesses. Facebook's app platform has, by itself, created somewhere around 200,000 new jobs (pdf). It's likely that Apple's iOS app platform has created significantly more than that, given how popular it is. Google's tools have been shown to create $64 billion (with a b) in additional economic activity.
  
  Do we really want to stifle all of that growth and activity with regulations that will stifle innovation and jobs, even (as noted above) as the evidence shows that merely adapting and providing a better service makes everyone better off?



• That uncertainty has extreme and quantifiable effects on investment in new startups. A very detailed look at the uncertainty in the cloud computing space, prior to and after the decision in the Comedy Central v. Cablevision case, which effectively set the framework for the legality of cloud computing, showed much greater investment when the law was clarified to be in favor of letting these new services thrive. Take that away, and investment in this engine of growth likely would be much lower. Considering that politicians claim to be so concerned about the economy and jobs these days, the idea that they would push forth a bill that quantifiably would reduce investment in one of the only sectors creating new jobs is really stunning.



• Broadly expanding secondary liability is a dream for trial lawyers, but will be a disaster for business. There's been a move, associated with these bills to somehow demonize important concepts of safe harbors from secondary liability. The suggestion is that secondary liability somehow "allows" bad activity. Nothing is further from the truth. Illegal activity is still illegal. The point of safe harbors from secondary liability is blaming the party actually doing the action that breaks the law. We don't allow people to sue AT&T because the telephone was used in commission of a crime and we don't sue Ford because someone crashed their pickup truck into another car. Liability should be properly applied to the parties doing the action that breaks the law. The safe harbors have just made that clear -- and allowed innovation to flourish. Empirical studies have pointed out that "the rich informational ecosystem we know today... is a function of the 'breathing space' Internet intermediaries currently have under the law."
  
  Other studies have shown that pulling back on such secondary liability safe harbors would mean that investors would need an astounding 13x to 20x return on investment to make the risk worthwhile. That triples or quadruples the standard risk level that most angel investors deal with.
  
  The key way that both PIPA and SOPA function are to drastically scale back that breathing space, by attaching secondary liability and compliance costs to US companies, in an attempt to keep users from infringing via other sites. That would represent a massive shift in the legal framework that has allowed the internet to flourish, and yet no research or studies have been done to look at the possible impact of all of this.



• The technical measures described in both bills is tremendously problematic. Looking to use DNS blocking is just a bad move. It's why a group of core internet infrastructure experts spoke out very early on (about COICA, in the pre-PIPA days) to explain how DNS blocking would set back a decade or more's worth of work on online security standards, would make people less safe online, and has the risk of fragmenting the internet. It's why the founder of the world's largest independent DNS provider, OpenDNS, in charge of protecting one-third of all schools in the US, has noted that under these laws, he likely wouldn't have started the company, or might have started it in another country.


• Having a judge determine the best network architecture is a bad idea. SOPA's attempt to address the "DNS blocking doesn't work" argument by adding a vague standard in which courts can order sites to take "reasonable measures" to block even more is also not encouraging. Does anyone really think that we want some judges determining what are "reasonable measures" for managing how the internet works? Wouldn't it be better to trust the long line of experts, drop any thought of DNS blocking, and move on?



• Going down the slippery slope of censorship is fraught with peril, both domestically and abroad. Supporters of the law get angry any time people bring up censorship, but as law professor Derek Bambauer has made clear, any effort to block content is a form of censorship. What we can argue is whether or not this form of censorship makes sense or is a policy that people think makes sense. But no one should deny that bills that lead to blocking access to websites is a form of censorship.
  
  There is reasonable debate as to whether or not this level of censorship goes violates the First Amendment. Constitutional scholar Laurence Tribe has argued that it does violate the First Amendment. Well over 100 of the country's top legal scholars have made the same argument. Arguing on the other side is well respected First Amendment lawyer Floyd Abrams... but even he admits that under SOPA and PIPA protected speech would get censored. He just deems that as acceptable collateral damage, as being merely "incidental." We can argue over whether or not it really is incidental, as we've already seen actions against sites under current law that seek to stifle large amounts of protected speech outside of any infringement.



• The functional setup of such site blocking -- via DNS blocking -- is effectively identical to how the Great Firewall of China works. While the intended purpose is obviously different, the actual mechanism for blocking is nearly identical. This creates significant cover for repressive regimes to resist any diplomatic efforts by the US to push back against attempts by the US to promote internet freedom. Furthermore, we have seen how countries, such as Russia, have used copyright law to censor political opposition, using the law to go against activists challenging the government. Even if the intended purpose of SOPA and PIPA are to protect against infringement, opening up the door to censorship for one purpose makes it nearly impossible to avoid it being used for other purposes. It also basically gives the perfect blueprint for repressive regimes. They merely need to claim that their Great Firewalls are designed to stomp out infringement, and then can use it to intimidate and block political opponents. Adding to that is the massive expansion of the diplomatic corp. pushing for greater enforcement, and it's almost as if we're begging countries to set up their own Great Firewalls that will certainly be abused.
  
  
• Countries abroad are watching us, and already noting the seeming hypocrisy concerning our statements. Media in other countries, who already are known for suppressing speech and censoring the internet, are already mocking the US for even considering such legislation at the same time as the US State Department claims to be promoting internet freedom. Talking about the importance of internet freedom on the one hand, while pushing countries to put in place the very tools that will be used to undermine internet freedom is not a particularly consistent message. This can be seen in VP Joe Biden's recent speech on internet freedom that presents all the arguments for why SOPA and PIPA should not be supported (in an unintended manner).
  
  
• Changing what counts as a felony for copyright, without understanding the implications or common usage of technology puts many at risk. This does not apply directly to PIPA, but its companion legislation in the Senate, S.978. Similar provisions are found in SOPA as well, making certain forms of "streaming" a felony. Supporters of these actions insist that they're merely harmonizing criminal and civil copyright laws, since the felony parts of the criminal copyright statute cover reproduction and distribution, but not performance. What they fail to recognize (or admit) is that there's a reason why performance rights were left out, and it's because it's pretty ridiculous to think of a felony performance in normal contexts. But it becomes even more troublesome in the online context, because "performance" is so vaguely defined in an era when streaming works via a simple one-line embed. To embed a video is no different -- from a technical standpoint -- from linking to a video. And most people would have significant problems with the idea that you could face five years in jail for merely linking to content you have no control over. Yet, the streaming portions of SOPA and of S.978 make that entirely possible. Merely putting a single line of code on a site, pointing to content on another server that you have no control over, potentially makes you a felon. This will have massive unintended consequences and puts at risk millions of Americans who embed videos all the time.

To be honest, there are many, many more problems hidden down within the specifics of the bill, but this post was already getting long enough. However, what we have is a bill that doesn't tackle the real problems at all, that won't solve the problem it thinks it's facing, and has massive unintended consequences. Why? Well, because the entertainment industry insists that it's in trouble. This is the same entertainment industry who has been claiming the same thing about every technological innovation ever. If they'd had their way in the past, there would be no radio, no cable TV, no VCR, no TiVo and no iPods. Do we really trust them now to create a "narrowly focused" law that will only target the really bad behaviors? We'll close it out with a few quotes from the entertainment industry over the last century discussing various technological innovations, and question why we're letting them drive PIPA and SOPA forward:

The Player Piano

“I foresee a marked deterioration in American Music…and a host of other injuries to music in its artistic manifestations by virtue – or rather by vice – of the multiplication of the various music reproducing machines” -- John Philips Sousa, 1906

The Video Cassette Recorder

"But now we are faced with a new and troubling assault on our fiscal security, on our very economic life, and we are facing it from a thing called the Video Cassette Recorder" -- MPAA President Jack Valenti in 1982

Cassette Tapes

"When the manufacturers hand the public a license to record at home...not only will the songwriter tie a noose around his neck, not only will there be no more records to tape, but the innocent public will be made accessory to the destruction of four industries" -- ASCAP, 1982

Digital Audio Tape


The Mp3 Player

“Diamond's product Rio was destined to undermine the creation of a legitimate digital distribution marketplace..." -- RIAA President Hillary Rosen in 1998

The Digital Video Recorder

"It's theft...Any time you skip a commercial or watch the button you're actually stealing the programming." Turner Broadcasting CEO Jaime Kellner in 2002

Filed Under: bad ideas, censorship, copyright, economy, investment, jobs, pipa, protect ip, secondary liability, sopa

Patent Trolls Cost The Economy Half A Trillion Dollars

from the ouch dept

Last month, in talking about an episode of Planet Money with James Bessen on it, we mentioned his new research suggesting that patent trolls evaporated half a trillion dollars in wealth. Now that research, done with Michael Meurer and Jennifer Ford has been released (thanks to Tim Lee for the pointer): The Private and Social Costs of Patent Trolls.

Note that this isn't trying to count "losses" like the entertainment industry in trying to make up numbers about what would have sold. This is a direct observation on value of companies sued by patent trolls, and looking at how much of their value evaporates in response to the lawsuits. The $500 billion number represents a total over 20 years -- from 1990 to 2010. But, even worse (and not surprisingly), the numbers show that this number has been going up. Over the last four years, the total decimation of value from patent troll cases has averaged over $80 billion per year. In other words, over $320 billion of that $500 billion came in just the last four years.

Does this mean that some of this money is being transferred to actual inventors? Nope. Again, the research finds otherwise. The incentive to inventors has not increased by nearly the same amount. The research points out that licensing companies could add value -- but that under the current system, they do almost certainly do not. And as the problem is getting worse, all Congress can do is pass some hapless reform bill that doesn't even deal with the patent trolls issue at all.

Filed Under: cost, economy, james bessen, jennifer ford, michael meurer, patent trolls, patents, software patents

Insanity: Getting Worked Up Over One Company's Slight Change Of Opinion In The Creditworthiness Of The US

from the it's-an-opinion dept

You may have heard (or, at least, I hope you heard) that, late Friday, S&P downgraded the US's credit rating from AAA to AA-plus, causing all sorts of hair pulling and worry. Here's the part that makes no sense: S&P's rating of the safety of US debt is simply an opinion. It's certainly a high profile opinion, but it's still an opinion. What I can't figure out is why anyone is making a big deal of one private company making a slight change to its opinion. People are acting as if this change is a change in facts. They're acting as if an S&P downgrade actually makes US debt less trusthworthy. It does not. The US may very well not be that trustworthy on its debt (in fact, I find that argument quite compelling these days), but having one company say that is meaningless.

We've discussed this before. For absolutely no good reason, the US government decided to put the opinion of various rating agencies into law, requiring certain institutions to maintain certain percentages of "highly rated" bonds in order to engage in certain activities. The insanity is that it effectively forced the world to think about ratings from S&P and Moody's as if they were fact, even though they're really just opinions. And to do all of this even if their ratings go against one's own opinion. And, of course, we all know that the ratings agencies are far from perfect, and have an unfortunate history that suggests that, at times, they've succumbed to pressure.

So, even if you believe that the US government's financial position is a disaster (and, again, a case can be made for that), it's crazy to pretend that one company changing its opinion (just slightly) has any actual meaning. Most of the market can and does make its own decisions on the creditworthiness of US debt, no matter what S&P says. In other words, the (slim) risk of the US actually defaulting is already priced in. The S&P saying what people are already thinking doesn't mean that anything fundamental changed... other than its opinion.

Markets are made based on the interaction of buyers and sellers. Not the (sometimes questionable) opinions of just a few firms.

Filed Under: debt, economy, opinions, ratings, united states
Companies: s&p